Housing/Real Estate FAQs

This manual contains only general information about legal topics. It is not legal advice and should not be used as a substitute for consulting an attorney about the details of your particular circumstances.

If you have a civil legal concern, you may contact the NH Legal Assistance Senior Law Project for free legal advice. Our toll-free number is: 1-888-353-9944.

Revised February 2021

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Landlord/Tenant

Can I break a written lease before the term of the lease has expired?

In New Hampshire, if you break a written lease, you are essentially breaching a contract, and may therefore be liable for damages to the landlord. Unless the landlord agrees to let you terminate your lease before it expires, you may be obligated to continue paying rent for the rest of your lease term, even if you move out. In addition, the landlord may deduct the rent you owe from your security deposit if you break the lease.

However, before a landlord can make you responsible for the remaining rent owed, s/he is required to take steps in order to minimize his/her losses, such as trying to find another tenant for the apartment. This is known as “mitigating damages.”

Sometimes there is a lawful reason for breaking your lease such as when your apartment is in seriously substandard condition or you are being deprived of your quiet enjoyment of the premises. This is called “constructive eviction.” But, in order to do this, you need to show that the landlord breached the warranty of habitability, or the landlord’s actions substantially jeopardized your use of the premises.

If you need to leave the premises and wish to avoid having to owe the landlord the remaining rent due, you may want to consider temporarily renting your space to another person until your lease ends. This is called “subletting.” Check your lease because many leases prohibit subleasing or require you to get the landlord’s approval before you can sublet to someone else. The landlord may not object to a sublease because even if the new tenant refuses to pay rent, the landlord can require you to pay the remaining rent.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540-A:5-8 – Security Deposits
• N.H. Rev. Stat. Ann. Ch. 540 et seq. – Actions against Tenants
• Echo Consulting Services Inc. v. North Conway Bank, 140 N.H. 566, 569 (1995).
• Kline v. Burns, 111 N.H. 87 (1971).

Can I get all or part of my security deposit returned before my lease ends?

Typically, in New Hampshire, the landlord has thirty days from the end of the tenancy to return your full deposit plus interest but less any allowable deductions for damage to the premises. If you end a tenancy before the specified date, the rules regarding security deposits change.

If the landlord agrees, you may be able to get all or part of your security deposit back before your lease ends. However, landlords require security deposits as protection in the event the tenant damages the premises or does not keep the premises clean. The amount returned depends on the condition of the premises and how much it will cost the landlord to return the premises to the condition it was in at the time the tenant leased the space, excluding reasonable wear and tear.

Landlords usually assess the condition of the premises at the time the lease expires, and the tenants move out, so it’s not likely that a landlord will give up the security deposit prior to the end of a lease.

In addition, landlords may use the security deposit to apply towards rental arrears in case the tenant fails to pay the rent. Some leases may even expressly state that if a tenant fails to pay rent, or moves out without proper notice, the deposit is forfeited. Thus, if you break the lease, it is not likely that you will receive your security deposit back.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540-A:5-8 – Security Deposits

How do I get my security deposit returned to me?

Your landlord has no later than thirty days after the date your tenancy ends to send you all or part of your security deposit plus interest, if any interest is owed. Even if the landlord is making a claim on the security deposit, s/he must send you a written, itemized list of any damages for which s/he claims you are liable.

When you move, you need to let your landlord know your new address within a reasonable time so that s/he can send you a check for the return of your security deposit or the itemized list of damages. After six months, your security deposit becomes the property of your landlord if you fail to notify your landlord of a new address.

The amount of your security deposit that you get back depends on the condition that you left the premises in. In addition, if you left before your lease expired and did not pay the remaining rent owed, then the landlord may keep your security deposit as rental payment.

New Hampshire statutes enumerate those situations in which a landlord can withhold your security deposit. For example, if you owe rent or other charges due under the lease, or caused damage to the premises, then your landlord may deduct such costs from your security deposit.

However, in order for the landlord to claim costs, s/he must give you an itemized list of such expenses that were taken from your deposit. The list must include the exact repairs needed and the cost that the landlord will incur for making such repairs, and the landlord needs to furnish proof that the repairs have been, or will be, made. For example, the landlord needs to give you repair estimates and/or receipts.

Remember that the security deposit is your money, and the landlord is merely holding it for you in case you fail to pay rent or you damage the premises. Unless you left owing the landlord for damage or unpaid rent, s/he is not legally able to keep all or part of your deposit.

If you are entitled to all or part of your deposit and you do not receive your deposit or an itemized statement of damages within thirty days, you can sue your landlord in small claims court. A tenant may be entitled to receive twice the sum of the amount of the security deposit plus any interest due to a landlord’s failure to timely provide the return of a security deposit and/or a statement of expenses deducted from the security deposit. Likewise, your landlord may sue you in small claims court if your deposit is insufficient to cover the expenses of unpaid rent and/or damage to the premises.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540-A:5-8 – Security Deposits

What amount of security deposit can my landlord require?

In New Hampshire, a residential landlord generally cannot require you to pay a security deposit that is more than one month’s rent, or $100, whichever is more. This limitation does not apply to landlords who rent or lease:

• a single-family residence and own no other rental property, or
• a building which has five units or less and the landlord lives there (“owner-occupied”).

The only exception to this is when an individual who is at least 60 years old rents the apartment. Then, if the apartment is in an owner-occupied building of five units or less, the landlord may still only require a security deposit equal to one month’s rent or $100, whichever is more.

When you lease an apartment and your landlord takes your deposit money, s/he is required to put your money into an account that is separate from his/her personal account. Additionally, the landlord is required to furnish you with a receipt that states the amount of your deposit and the location of the place where the money will be held. Essentially, the landlord is holding your money in trust for you. In most cases you are eligible for the deposit money upon termination of your tenancy provided that you do not fail to pay rent, abandon, or damage the premises.

You may also be eligible to receive interest on your security deposit. New Hampshire law requires that if your landlord holds your deposit for over one year, s/he needs to pay you the amount of interest earned on the money from the date the landlord received the deposit. However, if the deposit is returned within one year, you are not eligible for the interest that may have accrued on the deposit.

Tenants are entitled to payment of accrued interest on the security deposit every three years. You must make your request for the accrued interest, in writing, at least thirty days before the anniversary date of your tenancy. The landlord is required to comply with the request within fifteen days of the expiration of that year’s tenancy.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540-A:5-8 – Security Deposits

May a landlord apply a security deposit to rent owed as well as damages to the property?

Yes. A landlord may apply all or part of your security deposit to rent not paid and/or damages to the premises. However, in order to deduct money from your deposit, the landlord must give you written verification as to what the deduction is for. For example, if the landlord claims that you damaged the premises, s/he must provide you with an itemized list of the repairs that need to be done as well as any estimates or receipts that verify his/her claim.

In addition, the landlord may be able to deduct money from your deposit if real estate taxes have increased and you owe your share. This will arise only if you and your landlord have a written agreement making you responsible for a portion of the taxes.

Please note that the landlord may not deduct money from your deposit for normal wear and tear to the premises. Examples of normal wear and tear could be worn carpeting, chipped paint, worn kitchen flooring, etc. In contrast, damages to the premises are likely to be things such as broken windows, holes in the walls, pen marks on the carpet or walls, etc.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540-A:5-8 – Security Deposits

I want to evict a tenant. How do I go about doing so?

New Hampshire law requires that a landlord have good cause to evict a tenant. A landlord must generally provide the tenant with written thirty days’ notice, which is to be delivered to the tenant personally, or left on his/her door. However, if you want the tenant to move because s/he failed to pay rent, substantially damaged the premises, or behaved in such a way that negatively affected the health and safety of other tenants, the landlord or his/her employees, then a landlord is only required to give seven days’ notice. In addition, you are required to provide the tenant with a specific reason for the eviction that is to be stated in the notice. Furthermore, the eviction notice must contain an attestation which states how, when, and where the notice was given to the tenant so the court may ensure that delivery was proper. Also, under state and federal law, a landlord cannot terminate a tenancy solely based on a tenant or household member having been a victim of domestic violence, sexual assault, or stalking, provided that the tenant or household member has obtained a protective order. Under federal law, there is no requirement that a victim obtain a protective order.

Nonpayment-of-rent evictions also require service of a demand for rent before or with an eviction notice. In addition, a nonpayment-of-rent eviction notice to quit needs to provide the tenant with notice of the right to cure by paying the amount demanded plus $15 liquidated damages. If the tenant pays before the notice expires you may not proceed with the eviction. The demand for rent needs to be given to the tenant personally or left on his/her door and needs to be accompanied by a certificate of service in order to show that the tenant received proper notification.

Note: if you are participating in the Section 8 Program and the Public Housing Authority fails to pay its portion of the rent to you, the landlord may not evict the tenant. Furthermore, if a landlord does not provide thirty days’ notice, the landlord cannot evict the tenant or increase rent payment until the landlord has provided notice and 1 year has elapsed.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540
• 42 U.S.C. § 1437f – Low-income Housing Assistance
• AIMCO Props. v. Dziewisz, 152 N.H. 587 (2005)

My landlord wants me to move because she says she is going to sell the house. I’ve lived here for 10 years and always pay my rent on time. Can she really force me to move?

Private Housing: Assuming that you do not have a written lease agreement that states otherwise, and you rent from a private landlord, your landlord may be able to terminate your tenancy at will if the landlord has good cause for doing so.

New Hampshire law requires that that your landlord provides you with thirty days’ notice, to be delivered to you personally, or left at your home UNLESS you fall into one of four categories. These are the four categories: (1) if your landlord wants you to move because you failed to pay rent on time; (2) if you substantially damaged the premises; (3) if you, household members, and/or guests behaved in such a way that negatively affected the health and safety of other tenants; (4) if you refused to move to a safe residence because of possible lead hazards. If you fall into one of these four categories, then you are only required to receive seven days’ notice. In addition, the landlord is required to provide you with a specific reason for the eviction that is to be stated in the notice. Furthermore, the eviction notice must contain an attestation which states how, when, and where the notice was given to the tenant so the court may ensure that delivery was proper.

The landlord can also provide you with a notification demanding payment of rent if you have not paid the rent on time or if you owe rent for previous months. The rent-demand notification also needs to be given to you personally or left at your residence and needs to be accompanied by a certificate of service in order to show that you received proper notification.

Public Housing: If you reside in public housing, you cannot be evicted unless the Public Housing Authority has good reason, or you seriously violate or repeatedly fail to perform your obligations as stated in the terms of your lease. For example, you may be evicted if you continuously fail to make rent payments. In addition, the landlord can evict you if you engage in criminal activity that jeopardizes the safety, health, or the right to quiet enjoyment of the premises by other tenants. Also, any drug-related criminal activity constitutes grounds for eviction.

The Public Housing Authority is required to give you fourteen days’ notice in the event that you do not pay rent. In all other situations, the landlord cannot give less than thirty days’ notice for eviction. Also, unless you were involved in criminal or drug-related activity, you may be entitled to an administrative hearing that will enable you to voice your grievances. Additionally, you may be afforded the opportunity to review any documents that are related to your eviction.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 540
• AIMCO Props. v. Dziewisz, 152 N.H. 587 (2005)
• 24 C.F.R. § 966.4 (1), (2), (3) – Lease Requirements
• 42 U.S.C. § 1437d(k), (l) – Contract Provisions and Requirements

I know my landlord is going to evict me but I’d like to stay here as long as I can. What can I expect to happen during the eviction process?

There are certain steps that a landlord must take before a tenant can be legally evicted from his/her apartment:

Demand for Rent: This must be served if the reason for eviction is non-payment of rent. The Demand for Rent must be served after the rent becomes due and prior to or at the same time as service of an Eviction Notice. It may only demand the amount of rent that is actually due. This notice must be served either personally or may be left at your door.

Eviction Notice: 7-Day: The landlord is only required to give you seven days’ notice on the Eviction Notice (“EVN”) if you are being evicted for (1) non-payment of rent, (2) dangerous behavior, or (3) substantial damage to the premises. The EVN must contain the following:

• notice must be in writing;
• the specific reason for the eviction;
• require relinquishment of the premises within at least seven days of the date of the EVN;
• service must be made personally or at your door;
• in non-payment cases, the EVN must state the right to cure. Right to cure means payment of the full amount due plus $15 liquidated damages prior to the date specified in the EVN. Payment of this full amount within the specified timeframe constitutes a good defense to the EVN. The tenant can do this only three times in a calendar year.

Eviction Notice: 30-Day: The landlord is required to give you at least thirty days’ notice if you are being evicted for (1) failure to comply with a material term of the lease, or (2) other good cause. The EVN must be in writing and must contain the following:

• the specific reason for the eviction;
• require relinquishment of the premises within at least thirty days of the date of the EVN;
• service must be made personally or at your door;
• if grounds for eviction is “other good cause,” and the “good cause” is based on something that the landlord says the tenant should or should not be doing, the landlord must have provided the tenant with a prior written notice which is either personally served or sent via certified mail advising the tenant that in the future the objectionable conduct will constitute grounds for eviction.

Landlord and Tenant Writ: If the tenant has not vacated the premises within the specified notice to quit period, the landlord must next file a Landlord and Tenant Writ with the local district court. A sheriff must serve the Writ no less than seven days before the return date on the Writ. The return date is the date the tenant must file an “appearance” form with the court to prevent the court from issuing a default judgment in favor of the landlord. Once the tenant files an appearance, the court will schedule a hearing within ten days. If either the landlord or the tenant wants to request discovery, the request must be made within five days of the return date. A court may grant a continuance of the scheduled trial date to allow time to complete discovery. At the hearing, the landlord has the burden of proof in convincing the court to grant the eviction. The tenant has the right to present any defenses at the time of the hearing.

Writ of Possession: If the court finds in favor the landlord, a writ of possession will be issued. The writ of possession is the document that allows the landlord to take possession of the premises and have the tenant physically removed from the premises, if necessary. The writ will not issue immediately. For contested hearings, the writ will not issue until the seven-day period for filing appeals has expired. For cases where a default judgment has been entered, it will take at least 3 days for the writ of possession to issue. The court will forward the writ of possession to the local sheriff’s office, where it will be served upon the tenant, according to the procedures followed by each particular sheriff’s office. If a landlord tries to force a tenant out of his/her apartment before obtaining a writ of possession, the tenant can file a “540-A” petition in the local district court to gain immediate re-entry into the apartment. The landlord can be assessed an initial fine of $1,000 including costs and reasonable attorney’s fees incurred in the court proceedings. Each day that a violation continues after issuance of a temporary order shall constitute a separate violation and additional fine of $1,000 per violation.

Discretionary Stay: In all evictions, the court has the authority to grant a stay of up to ninety days, during which time the writ of possession is “stayed” (or “stopped”) by the court. The judge may grant all, none or part of the ninety days allowed under the law. The tenant must pay rent weekly during the stay period. If the tenant misses a payment, the landlord can immediately go back to court and obtain the writ of possession.

Appeals: Either party may appeal the court’s ruling by filing a notice of intent to appeal in the district court within seven days of the notice of judgment date. To perfect the appeal, the notice of appeal must be filed in the New Hampshire Supreme Court within thirty days. The filing of an appeal stays the eviction.

For further information, please see:

• N.H. Rev. Stat. Ann. Ch. 540, et seq. – Actions against Tenants
• N.H. Rev. Stat. Ann. Ch. 540-A:1-5 – Prohibited Practices

I live in subsidized housing. Can my landlord evict me?

Yes; however, a landlord participating in the Section 8 program and a Public Housing Authority acting as a landlord in public housing units must go through the same procedural requirements under New Hampshire state law as any other landlord in order to evict a tenant. In fact, there may be even greater requirements for a landlord under these programs.

If a Public Housing Authority wants to evict you, it must follow its own internal grievance procedure before going to court. An internal grievance procedure typically grants the opportunity for an informal conference, where you can discuss the problems with a representative, and a formal grievance procedure, which allows you to have a more formal proceeding before your legal hearing in the court system. In the formal hearing, an impartial decision-maker will hear both sides of the case and decide if the housing authority has enough evidence to proceed with the legal action. You should refer to your housing authority’s procedures; there may be specific rules for how to proceed and timeframes in which you must make requests. A copy of your housing authority’s grievance procedure should be available upon request. Even if you use the housing authority’s grievance procedure and do not win, the housing authority must go through the entire legal proceeding.

If your landlord participates in the Section 8 voucher program, there are additional rules that he must follow pertaining to evictions. For instance, a landlord may not evict a tenant for nonpayment of rent if the portion of rent unpaid is the housing authority’s portion. In addition, your landlord may not evict you for failure to pay a rent increase if the rent increase has not been processed and approved by the housing authority. Finally, permissible reasons for eviction during your first year of participation in the program may be limited. If you are a tenant participating in the Section 8 program, you should seek immediate advice about any eviction notices you receive, as some reasons for eviction could cause the termination of your subsidy if you lose in court.

There are also special housing protections for victims of domestic violence living in subsidized housing. Individuals cannot be denied subsidized housing or evicted solely based on their being victims of domestic violence, dating violence or stalking.

For further information, please see:

• 42 U.S.C. § 1437f – Low-income Housing Assistance
• 24 C.F.R. Part 982 – Basic Policies of Section 8 Housing Assistance Payment Program

I am a tenant in subsidized housing. How should my rent be determined?

In these programs, tenant rents are calculated based on tenant income and are typically 30% of the entire family’s monthly, adjusted income. Adjusted income is calculated by totaling all sources of income received by the family’s head and spouse and by each additional member of the family, including wages, tips, welfare assistance, child support, etc., and then making certain deductions. There are specific rules regarding whose income must be included, what types of income must be included, and what deductions may be taken. In some programs a tenant may be authorized to pay more than 30% of his income to rent a particular unit.

In addition to income-based rent, under new welfare reform laws, housing authorities must now offer tenants the choice of paying a flat rent, which is defined as the estimated rent for which the housing authority could promptly lease the public housing unit after preparation for occupancy. The choice of paying a flat rent is seen as a way for tenants who are becoming self-sufficient to save increased earnings over a period of time without having their rent increased. When a tenant goes for an annual recertification, the housing authority must calculate and offer both the income-based and flat rent.

In the Section 8 voucher program, a tenant may pay no more than 40% of his/her income for rent for the first year of tenancy. Upon renewal of the lease s/he may pay an even higher percentage of his/her income if the landlord demands a rent increase.

For more information, please see:

• 42 U.S.C. § 1437a(a) – Rental Payments
• 42 U.S.C. § 1437f – Low-income Housing Assistance
• 24 C.F.R. § 960.253 – Choice of Rent

Mobile Home Parks

The owner of the mobile home park told me I must move because my adult daughter moved in last month. Can he really force me to leave?

Maybe. If the park has explicit rules that limit the number of occupants that can reside in your unit and you disobey such rules by bringing in an adult child, then the park owner may be able to evict you. However, if your circumstances are such that it would be unreasonable for the park owner to evict you for having your adult child living with you, you may be able bring a claim against the park owner for instituting an unreasonable rule. Please note that determinations as to whether a rule is reasonable are based on a case-by-case basis. If you believe that you are being subjected to unreasonable or unlawful park rules you may wish to file a complaint with the Board of Manufactured Housing at:

Board of Manufactured Housing
121 South Fruit Street
Concord, NH 03301

You may also call the Board of Manufactured Housing at: (603) 271-2219.

For example, if you are a single person living in a unit that can support several occupants, it may be unreasonable for the park owner to prohibit your adult child from living with you. On the other hand, if you reside in a unit that does not have the capacity to hold one more resident, it may be reasonable for the owner to limit occupancy for health and safety reasons.

Additionally, if your adult child acts in such a way that disturbs other residents, damages property, or breaks the law or park rules, then the park owner may evict you if your child fails to leave.

Be aware that both New Hampshire’s State Commission for Human Rights
statute and the Federal Fair Housing Act make it unlawful for park owners to deny individuals housing based on his/her age, race, color, national origin, religion, sex, creed, marital or familial status, mental or physical well-being, or national origin. Additionally, under state law, it is unlawful for park owners to deny housing to individuals based on gender identity and sexual orientation.

For example, if you are disabled and need your adult child to assist you in your living arrangements, and the park owner prohibits the child from living with you, s/he would be violating both the Federal and State laws that regulate fair housing and reasonable accommodations.

If you suspect that the park owner has discriminated against you or has treated you unreasonably, you may be eligible for monetary recovery both on a state and federal level. In addition, if the park owner violated park rules, you may be eligible to recover damages under New Hampshire’s Consumer Protection Act.

In order to evict you, the park owner must give you sixty days’ written notice (thirty days for non-payment of rent) and s/he must state the specific reason for the eviction. If the reason for the eviction is that the park is being condemned or closed, then eighteen months’ notice is required. In addition, you have the right to a court hearing on the eviction matter and you cannot be evicted without the court issuing an order.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 205-A:1-A:31 – Regulation of Manufactured Housing Parks
• N.H. Rev. Stat. Ann. Ch. 354-A:8-13 – Fair Housing
• N.H. Rev. Stat. Ann. Ch. 358-A – Regulation of Business Practices for Consumer Protection
• 42 U.S.C. § 3604 – Discriminatory Housing Practices (Fair Housing Act)

I just heard that the mobile home park where I live is being sold. Now what will happen; do the residents have any rights?

Yes. New Hampshire law requires that the tenants of the park have an opportunity to buy the park from the owner. Before an owner can sell the park, s/he must notify each tenant by having a 60-day written notice delivered by certified mail to each tenant’s home. The notice is required to inform the tenants that the owner intends to sell the park. Also, the notice needs to state the price, terms, and conditions for which the owner intends to sell the park and a copy of the agreement (the signed document) between the park owner and prospective buyer if an offer has been received and conditionally accepted by the park owner.

The owner must wait 60 days before s/he can make a final acceptance of an offer to sell the park to anyone other than the tenants. During the sixty-day waiting period, the owner must negotiate in good faith with any tenants group which is interested in purchasing the park.

Tenants may also get together with each other to talk about buying the park. If the owner fails to give any of the tenants notice, the tenants may be able to recover either $10,000 or 10% of the park’s selling price.

Please note that the park owner does not need to give notice of the sale if:

1. the park is foreclosed upon;
2. the sale is due to a family member becoming eligible to own the park by the terms of a trust;
3. the sale is to another existing owner of the park;
4. the sale is needed to keep the park going; or
5. if the government wants the land.

If you have questions about purchasing the park, contact:

New Hampshire Community Loan Fund (603) 224-6669
7 Wall Street
Concord, NH 03302-0800

and/or:

MOTA of New Hampshire (603) 224-0408
P.O. Box 998
Concord, NH 03302-0998

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 205-A:21-23 – Notice Required Before Sale, Penalties, and Exceptions
• N.H. Rev. Stat. Ann. Ch. 205-A:1-A:31 – Regulation of Manufactured Housing Parks

I want to sell my mobile home to my son. Can the mobile home park owner keep me from doing so?

Although the park owner may reserve the right to approve any person to whom you wish to sell your unit, the park owner may not unreasonably withhold approval. For example, unless your son has a poor credit history, has frequently failed to pay his rent in prior residences, or is unable to follow the rules of the park, then the park owner may not be able to refuse the sale of your unit to your son.

The owner may require that the new tenant follow the rules of the park but is prohibited from charging additional fees because of the sale. The owner may only charge extra fees if you and the owner contracted for the owner to be your sales agent for the purposes of selling your unit.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 205-A:2 – Regulation of Manufactured Housing Parks (Prohibition)

Real Estate

What types of transfers are exempt from New Hampshire (and local) real estate transfer taxes?

The general rule in New Hampshire is that if you sell, transfer or give real estate to another, it is subject to a transfer tax that both the buyer and seller are responsible to pay. The current transfer tax amount is $.75 per $100 unless the transfer amount is $4,000 or less, in which case there is a minimum tax of $20. However, there are a number of exemptions. The tax does not apply to transfers made in order to secure a mortgage, transfers to the state, county, city or school districts or gifts. Further, it does not apply to transfers by one co-tenant to another as a result of death (in situations where there is a joint tenant with rights of survivorship) or transfers that result from a divorce or annulment court order. Additional exemptions are explained in N.H. Rev. Stat. Ann. Ch. 78-B:2.

The federal government (Internal Revenue Service) also places a tax on real estate that is transferred during one’s lifetime or at death. However, if you leave property to another by means of a will, you only need to worry about this tax if the property is worth $10,000,000 or more. This tax includes all the transfers made during life and the transfers made at death. Furthermore, this dollar amount is increased to adjust for inflation.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 78-B:1 – Transfer Tax
• N.H. Rev. Stat. Ann. Ch. 78-B:2 – Exemptions
• N.H. Rev. Stat. Ann. Ch. 78-B:4(III) – Payment of Tax
• 26 U.S.C. § 1(f)(3) – Tax Imposed
• 26 U.S.C. § 2010(c) – Unified Credit Against Estate Tax
• https://www.bls.gov/cpi/additional-resources/chained-cpi.htm

I heard my son will have to pay an inheritance tax if I leave my house to him when I die. Is there an advantage in giving it to him while I am still living?

The NH Legacies and successions tax was repealed in 2003. However, there is also a Federal Estate Tax that applies to estates that are worth at least $10,000,000. Furthermore, this dollar amount is increased to adjust for inflation, as calculated in 26 U.S.C. § 1(f)(3).

If you give your home to your son during your lifetime, he will assume your basis for capital gains purposes. This means that if you purchased your home for $20,000 and it is worth $100,000 when you sell it, you will have to pay a capital gain on $80,000 since your basis in the house is $20,000. If you give your home to your son during your lifetime, his basis will also be $20,000. He will have to pay a capital gains tax on any amount in excess of the $20,000 if and when he sells the home. If the home is his primary residence for two of the five years prior to his selling the home, he may have an exemption from the capital gains tax.

For the above reasons, it may be more advantageous to leave your home to your son in your will instead of giving it to him during your lifetime. Another advantage of keeping at least a life estate in your home is that you probably pay less property tax than would your son. This is true even in the event that you set it up so that you have a life estate with the remainder going to your son upon your death.

A final consideration in giving your home to your son concerns Medicaid. If you ever end up needing Medicaid to pay for long-term nursing home care, and you have given away your home, you may be found ineligible for Medicaid coverage as a result of that gift. (For more information on the Medicaid ramifications of such a gift, see the question on making an uncompensated transfer of assets.)

For further information, please see:

• 42 USCA §1396a – State Plans for Medical Assistance
• 26 U.S.C. § 1(f)(3) – Tax Imposed
• 26 U.S.C. § 2010(c) – Unified Credit against Estate Tax
• https://www.bls.gov/cpi/additional-resources/chained-cpi.htm

My spouse died recently and as a result my household income has been drastically reduced. I’m afraid I won’t be able to pay my property taxes next year. What options do I have?

There are several types of property tax relief available for people over the age of 65. In New Hampshire, homeowners can apply for property tax abatement (an outright forgiveness of paying property taxes) or a property tax deferral.

Tax Abatement

Selectmen have the right to abate, or forgive, all or part of property taxes due for any given property tax year for “good cause” including inability to pay. To be eligible for an abatement you will need to prove to the town selectmen that your income is insufficient to meet your needs and that paying your taxes would create a hardship. The selectmen have great discretion in granting abatements. If your abatement request is denied, you have the right to appeal to the Board of Land and Tax Appeals. You have until September 1 to appeal to the Board of Land and Tax Appeals.

Tax Deferrals for the Older and Disabled Adults

You may be eligible for a property tax deferral if you are at least 65 years old or are eligible to receive Social Security or SSI benefits for the disabled, and you have owned your home for at least 5 consecutive years, are currently living there, and paying property taxes would pose a hardship. If eligible, the Town will place a lien on your property, and your property taxes will be deferred until you are able to pay the taxes, your property is sold or you die. The Town can then collect the taxes and include a 5% interest rate charge. Heirs of your estate will then have a right to pay the taxes and redeem the property.

You can apply for a deferral after receiving your last tax bill for the year. You must do so by March 1 of the following tax year. You will also need to obtain written approval from the mortgage holder if you have one. You can obtain an application from the Town. Deferrals may also be obtained for subsequent tax years for up to 85% of the value of the property. If your request for a tax deferral is denied, you can appeal to the Board of Land and Tax Appeals or Superior Court. You must appeal by September 1.

Tax Exemption for Older Adults

You may be eligible for a property tax exemption if you are at least 65 years old and have lived in New Hampshire for the last three years. The amount of the exemption and the eligibility rules vary by town, so you should contact your town directly. The state requires towns to set its income limit no lower than $13,400 for a single person or $20,400 for a married couple. The minimum asset limit is $35,000, not including the value of the home. However, your town may allow exemptions for residents with higher incomes and/or assets.

Tax Deferrals – Local Welfare

Any property owner, regardless of age, can also apply for a property tax deferral under the local welfare statutes. You must submit a written application to the Town prior to March 1 of the following tax year. For example, to apply for tax relief for 2011 taxes you must file your request no later than March 1, 2012. To be eligible, you will need to show an inability to pay and be eligible for local welfare assistance. If the deferral is granted, the Town will place a lien on your property and charge 6% interest. The Town can defer your taxes until the property is sold or until you die.

For more information, please see:

• N.H. Rev. Stat. Ann. Ch. 72:38-a – Tax Deferral for Elderly and Disabled
• N.H. Rev. Stat. Ann. Ch. 72:39-a – Conditions for Elderly Exemption
• N.H. Rev. Stat. Ann. Ch. 165:28 – Liens on Real Property
• Ansara v. City of Nashua, 118 N.H. 879 (1978)

I have not been able to pay my mortgage in several months. What will happen next?

You should immediately contact your lender, or loan servicer. Some lenders may be willing to modify the terms of your existing mortgage by extending your loan term or by reducing your interest rate. This may be referred to as a “loan modification”. In some instances, a lender may allow you to skip one or more payments and enter into a “forbearance agreement” which would allow you to make a repayment agreement as to those missed payments. Generally, this would mean that the lender would expect repayment of the missed payments over a period of six to twelve months, in addition to your regular mortgage payment.

If you do not contact your lender, you will receive a letter giving you thirty days to “cure” your loan which means bringing your loan current for the missed payments. This amount generally includes costs associated with the loan being delinquent. If you ignore the cure letter, the lender will send you another letter which “accelerates” your mortgage obligation. This means that the entire balance of your mortgage is now due. If you ignore this letter, the lender will send you another letter notifying you that a foreclosure sale has been scheduled. This letter will be sent to you by certified mail. At the same time, the lender must publish a notice of the foreclosure sale in a newspaper of general circulation where you live, once-a-week for three consecutive weeks.

New Hampshire is a power-of-sale foreclosure state which means that your lender will sell your home at a foreclosure sale and use the proceeds of the sale to pay off your loan. If the sale proceeds do not completely cover the balance on your loan, the lender may sue you for any deficiency balance.

If you are unable to afford your mortgage due to a change in your household size and/or income, selling your property prior to a foreclosure sale may be advisable. This is an especially good option if you have equity in your property. The lender may be willing to give you some period of time to sell the property privately, thus keeping your equity. If the house does not sell within a pre-specified time period, you might be able to give the property back to the lender. This is referred to as a deed-in-lieu of foreclosure. The lender would accept the property, you would lose all equity, but the lender would not be allowed to go after you for any additional money.

If you are unable to negotiate a loan modification or some other kind of workout with your lender or loan servicer, you may want to discuss filing for a bankruptcy with an attorney. Usually, filing under Chapter 7 of the bankruptcy code will only delay a foreclosure for a few months. However, filing under Chapter 13 might prevent foreclosure if you have enough income to make your current mortgage payments as they come due and pay the past due amount (including attorneys’ fees and costs) over a five-year period. If your income is not sufficient to enable you to make these payments but if you have substantial equity in your home, filing for bankruptcy protection under Chapter 13 might enable you to sell your home and keep some of your equity.

There are options available. Seek out the assistance of a professional housing counselor and/or bankruptcy attorney.

For more information, please see:

• Help for New Hampshire Homeowners at http://homehelpnh.org.

What is the difference between a Chapter 7 and a Chapter 13 bankruptcy?

Under Chapter 13 bankruptcy, your debts are reorganized into a repayment plan that requires you to pay off some or all of your debt over three to five years. The primary difference from Chapter 7 is that by filing Chapter 13 you will generally be able to keep your car and home (including mobile homes), with the stipulation that you make all current payments and all of the payments required by the court-approved repayment plan.

The process requires that you file a reorganization plan in which the court will examine whether you earn enough income to pay basic necessities (food, housing, utilizes, etc.) and any debt being considered. The difference between your income and your expenses is typically the amount you will be required to pay to debtors. This will allow you to repay secured creditors (those with a specific item as collateral, for example a car or a home) in full and pay a lesser amount to unsecured creditors (such as credit cards). By doing so, you are allowed to keep your home and/or vehicle.

A Chapter 7 bankruptcy will not stop a foreclosure or threatened repossession of a vehicle once those proceedings have begun, although it will delay them. Under Chapter 7 bankruptcy, most of your unsecured debts (debts that are not secured by collateral such as a house or a car) can be discharged (with important exceptions set forth below). This means that you are no longer legally required to pay the debts. A “discharge” is a permanent order which prohibits creditors from taking any form of collection action on the discharged debts. Chapter 7 is sometimes referred to as a “liquidation” because the bankruptcy court can take over the nonexempt assets, sell them, and use the cash to make distributions (or pay) to creditors.

However, a Chapter 7 bankruptcy is not meant to strip an individual of all his or her assets. In fact, just the opposite is true, as much of the debtor’s property is classified as “exempt” from the bankruptcy estate. For instance, in New Hampshire, an individual is entitled to a $120,000 homestead exemption and $240,000 for a couple. This means that neither the bankruptcy trustee (the individual that intermediates between the debtor and creditor) nor unsecured creditors can force a sale unless the equity in your home exceeds the amount of the homestead exemption. You may also retain most, if not all, of the personal property contained in your home, as well as a vehicle, tools of a trade, and interest in a retirement plan or pension. The list of exemptions is extensive and most low-income debtors will be found to have a “no asset” case and therefore are permitted to retain their personal property and discharge their unsecured debt.

There are certain types of debt that are ineligible for discharge, regardless of what chapter bankruptcy you file, including but not limited to:

• child support;
• alimony;
• most student loans;
• most taxes;
• court fines and criminal restitution;
• personal injury payments that are the result of drunk driving or being under the influence of drugs; and
• any debts incurred after the bankruptcy has been filed (unless a case is converted from Chapter 13 to Chapter 7).

For more information, please see:

• Federal Trade Commission, FTC Facts for Consumers; Before You File for Personal Bankruptcy: Information About Credit Counseling and Debtor Education, November 2006
  • https://www.ncrainc.org/cmss_files/attachmentlibrary/Before-Filing-for-Bankruptcy.pdf
• New Hampshire Bankruptcy Court, Consumer Pro-Se Debtor Guide, Updated December 1, 2017
  • https://www.nhb.uscourts.gov/sites/nhb/files/PDFs/2017-12-01%20Pro%20Se%20Debtor%20Guide.pdf
• GreenPath Financial Wellness 1-800-550-1961 (formerly known as Consumer Credit Counseling Service of NH)
  • https://www.greenpath.com/